Chester the Molester gives Photoshop two thumbs up!

Here in New Hampshire, we have a case going on of a guy who worked at a summer camp who’s being tried on child-pornography charges. He often took pictures of the campers, but was caught digitally superimposing the faces of some campers (who are under the age of 18, naturally) on to some nude photos — some very sexually explicit.

I honestly have absolutely no idea what ought to be done about this. The purpose of child-porn laws is clear: to protect the children who were abused in its production. But here, no children were directly harmed. They might have a case of defamation, but that’s a civil matter, not a criminal. And his lawyer is using a First Amendment defense.

On the other hand, it’s obviously being done for disgusting purposes, and the guy definitely has some major problems. I’m glad he was fired, and I hope he’s kept from ever working with kids again. In fact, I’ll even speculate that he’s a prime candidate to commit a real offense against a kid someday.

But our laws don’t work on the basis of “he’ll likely do something bad tomorrow, so we’ll arrest him today.” That was the subject of a bad Tom Cruise movie.

With the explosion of digital cameras and the almost-universal accessibility of photo-editing software, cases like this (and lawsuits over fake celebrity and non-celebrity nude photos) are only likely to increase. And we need to figure out just how we, as a society, want to deal with this.

For once, though, I’m going to play the wimp here and not take a side just yet. I think I’ll sit back and let “experts” like (this is quite painful to say) Attorney Mark and others kick it around it a bit before figuring out just where I stand.

(Please note that I’m not deferring to their judgment; I just want to hear their arguments.)

I hate cases like this… and it makes my loathing for the guys who do it even more intense.

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32 Comments

Mac LorryJuly 22, 2005

My understanding is that any depiction of a minor in a sexually explicit manner is against the law even if the depiction is totally fictional. The idea is that child porn harms kids even if no children were used to produce the porn. The loophole seems to be using a certifiable adult who looks younger than they are to produce porn that only looks like it’s child porn.

I suspect that the body of law addressing child porn is getting more and more complex due to technological advancements, and in a hundred years it could approach the complexity of our existing tax laws. At that point nobody will be able to understand it including Mark.

Jay Tea, you were on the right track when you asked what the purpose for photoshopping the pictures is. If just looking is fine but doing is wrong, how does that relate to the law? If the real thing – pictures of children in sexual activity or nude – is illegal, why would similitudes be acceptable?

You also raise the issue of intent, as if going after this guy equates to pulling someone in who might be thinking of doing something wrong. In this case you’ve got a guy who is acting, not merely talking about making up porn pictures of children. And why would you have a personal revulsion to the man if he isn’t really doing anything wrong? What happens next if there are no legal repurcussions for the man, who put himself in contact with children and will likely do so again? Is he only interested in images of child sex?

As I recall those court cases so far–and I admit that I haven’t bookmarked them to check back–the law came down on the side of reality v. fiction. Invented porn may be porn, but if it’s not real people, laws written to protect real people are not applicable.

This case, which blends the real and the fictive, is sort of interesting, but I suspect that since the bodies were not those of minors, they’re going to have a hard time convicting.

The guy’s certainly creepy. But creepy doesn’t equal felon. Yet, at least. The guy needs to be removed from a job putting him in contact with kids. I’m not sure he needs to be jailed for it.

My understanding is that any depiction of a minor in a sexually explicit manner is against the law even if the depiction is totally fictional. The idea is that child porn harms kids even if no children were used to produce the porn.

Actually, I seem to recall a ruling to the effect that digitally produced child pr0n isn’t legally considered child pr0n because no children were used to produce it. I could be wrong, or it could be in a different state or something. Crazy stuff.

My opinion about the case in the original post, though, is that this guy has appropriated the images of persons for his own purposes, which it seems to me ought to be considered a form of identity theft.

And I’d be willing to bet the NH legislature is going to be considering at least one bill to bring what this bird did under the legal definition of child pr0n. It’s what would happen in most states after a publicized case like this one.

The guy’s certainly creepy. But creepy doesn’t equal felon. Yet, at least. The guy needs to be removed from a job putting him in contact with kids. I’m not sure he needs to be jailed for it.

This calls for punishment of a sort, but states uncertainty as to the commission of a crime. I hope the lawyers are as smart as McGehee, or a few years from now there will be real cases to prosecute, and victims who won’t be able to equivocate their experience with Mr. Zidel.

MarkJuly 22, 2005

Ahh, I’m flattered Jay!

My “official” opinion is, “fucked if I know?”

I’ve never practiced criminal law, nor do I follow it closely. I could probably cobble together some theory analogizing this with “pornographic” art forms that are not based on photography, such as animation, painting, etc. But I would be guessing, and I would not be doing justice to the public policy of protecting children. In the criminal realm, I consider myself a lay person, despite law school training on the topic more than 20 years ago.

In the civil realm, I could list a host of torts based on defamation and possibly privacy rights. But you’ve already considered that.

Real life is calling, so I won’t be frequenting blogs in the near future. I know you’ll miss the heckling, Jay 😉 Adios!

My opinion about the case in the original post, though, is that this guy has appropriated the images of persons for his own purposes, which it seems to me ought to be considered a form of identity theft.

Criminally, my humble opinion is that he’ll walk on child porn charges. This might go to the Supremes, and with the changes about to be made with Roberts it might come out differently. But the precedent is that virtual child porn is not illegal. This is certainly virtual. Disgusting, but not illegal as the law stands today.

TomJuly 22, 2005

Isn’t this a form of libel? Surely Photoshopping someone’s head into a pornographic, or any other unauthorised, photo is defamatory and therefore actionable; if not by the minors involved then by their parents.

Looks like we need a lawyer. The guy is 59 years old. Wanna bet he has already molested children physically in the “real world”? He didn’t just recently develop this urge. What they need to do is thoroughly question the kids and any other kids he’s had contact with in the past. I’ll bet with a little effort, they will find someone. Maybe more than one.

mantisJuly 22, 2005

But our laws don’t work on the basis of “he’ll likely do something bad tomorrow, so we’ll arrest him today.” That was the subject of a bad Tom Cruise movie.

Sure, you love Heinlein, but you give Philip K. Dick the shaft? 😉

joeJuly 22, 2005

mantis:

No, we’re definitely dissing on Tom Cruise here.

Sue DohnimJuly 22, 2005

Why does anyone think the government needs to interfere with this man’s freedom of expression? That’s a bad precedent.

I don’t think the government should interfere with the girls’ fathers right to “help” this man descend several flights of stairs, either. I’m libertarian like that.

The “Starship Troopers” movie was horrendous, with its only redeeming quality the co-ed shower scene.

On the flip side, the movies made from “We Can Remember It For You Wholesale” and “Do Androids Dream Of Electric Sheep?” are classics.

J.

MarkJuly 22, 2005

Ok, just read the article, so disregard what I posted above. This is a tough one, at least for me.

Here’s my understanding:

1. Camp counselor takes legitimate photos of 15-year-old female campers;
2. Counseler posesses legal porn shots of others, presumably adults;
3. Creepy counselor does some photoshop work in the privacy of his own home to get his own rocks off; 15-year-old heads are paired with adult bodies;
4. Creepy counselor did not publish the photos to the public, but gave them to a superior;
5. I presume publication to his superior was purely accidental.

Does that constitute the proscribed “depiction of a child under the age of 16 “engaging in sexual activity” or posing in a lewd fashion?” I have no idea, and I would not be surprised if the result went either way. I would probably have an easier job arguing that it is not.

Some questions I have are:

(1) Does the New Hampshire law proscribe mere possession? –or does it target creation?

(2) Obviously, the crucial question is, what is depicted? Children were not depicted in compromising positions; those were adults. By changing the non-offending portion of the image, i.e., the face, does that change the depiction of the offending portion, the randy adults, into something else? Arguably yes. Arguably no.

With regard to civil causes of action, the issue will be whether these photos were “published” by means of the accidental transmission to his superior. It does not seem he had any defamatory intent, nor is there a good case for privacy-related causes of action. Without publication, there is no remedy. I don’t know whether accidentally giving a disc to one’s boss is sufficient, but I tend to doubt it.

This is a very close one in my mind, but I predict the guy will walk. Not on First Amendment grounds, but because I suspect the court will find the New Hampshire statute was not violated.

Still, as a father of two girls, I think I’d recruit Sue and Sparkle to host his acquittal party–preferrably from the highest rooftop in his town.

“any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where –

(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;

(B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct;

(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct; or

(D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct . . .”

Like I said in my first post; My understanding is that any depiction of a minor in a sexually explicit manner is against the law even if the depiction is totally fictional. Federal law, not State law is at work here.

-Mac Lorry

MarkJuly 22, 2005

Good job, Mac! If the perv is prosecuted using this federal statute, it seems pretty clear he’ll receive some protection from Sue and Sparkle, at least until he’s paroled.

I haven’t looked up the New Hampshire statute, but I hope it is similar to, and as clear as, the federal one.

I haven’t bothered to research the First Amendment crap the perv’s attorney mentioned in the article. Maybe there is something there, maybe not.

Ok, this is my final answer and I’m sticking to it. Please disregard my last post, too.

Real life is kidnapping me. Hasta!

JoltbklynJuly 22, 2005

The Supreme Court case is Ashcroft v. Free Speech Coalition, it is from 2002 and is available at findlaw.com if anyone is interested in reading it. In a nutshell, the child pornography must be of real children, or obscene (which can be, as you’ll see when you read the case, a difficult standard to meet) or it is protected by the First Amendment. This case would be in what is currently a legally contested area–where the children are part real, part “fiction.”
I think what this man has done is extremely harmful and should be criminal–aside from the fact that this type of material is often used an aid to child molestation, it is an enormous violation of these children’s privacy and dignity.

bullwinkleJuly 22, 2005

If turnabout is fair play like I’ve always heard someone needs to do a little photoshop job of this guy. Post it on every light pole, mail box, phone booth, anywhere the public can see it within a 300 mile radius of his home. I can even see the caption, “Coming soon to a neighborhood near YOU! A potential child molester. Remember this face.”

Look I created child porn…lock me up. This looks like a case of no criminal law broken, let the parents beat the crap out of the guy, try the parents, find them not guilty and send a message that where there are loopholes in the law, vigilantism fills the gap. Works for me…and is exactly what would happen if it were my kid.

Sue DohnimJuly 22, 2005

Protection from Sparkle and me? This piece of scum doesn’t need all that. We’re just helpless females trapped in a patriarchical hegemony. Now our husbands, on the other hand… don’t they have usually have staircases in courthouses? It’d be tragic if Mr. Chester would find a lack of traction at the top of those long, long stairways… CUIDADO PISO MOJADO.

RobJuly 23, 2005

Speaking from the common law of torts, which could very well be varied by statute…
Defamation requires “language.”
Odd as it sounds, the applicable tort would be invasion of right to privacy–specifically so-called “false light”.
you’d still have to show that these little montages were intentionally or negligently shown to a third person.

MarkJuly 23, 2005

Rob, “false light” is telling or depicting the *truth* in a misleading or deceptive way. That is not what these pictures depict.

As for defamation requiring “language,” you might be correct in your jurisdiction. Here, it does not. The depiction of something *false* and disparaging is sufficient here. The subject photos tell the lie that these kids posed nude and had sex, and they tell it better than any words ever could.

Sue DohnimJuly 23, 2005

Stairs, creep, massive blunt trauma – some assembly required.

John S.July 23, 2005

If the police feel the need to prosecute creepy, I’d suggest copyright infringment. His “Barely 18” background photos came from somewhere, presumably the Internet. As for creepy himself, if he’s not smart enough to 128-bit encrypt and password his “personal fantasy pictures,” he deserves to go to jail. (I said the same thing when my sister yelled at my nephew for downloading porn onto the home computer.)

MarkJuly 23, 2005

Sue forgot a component: spikes. Maybe the “do not back up” spikes in parking lots would work.

I think what this man has done is extremely harmful and should be criminal–aside from the fact that this type of material is often used an aid to child molestation, it is an enormous violation of these children’s privacy and dignity.

MarkJuly 25, 2005

Not to be too much the devil’s advocate, Pen, but please tell me how it’s harmful? It is sick and criminal (per the fed statute cited above), but how have these kids suffered harm?

A professional photographer took photos of kids at the camp where he worked as a counselor. Harmful? I don’t see how.

The photographer twisted things around in the privacy of his own home. Sick and criminal, but harmful yet? Nope.

He *accidentally* (I am assuming) gave the twisted photos to a camp supervisor, but they went no farther, as far as I know. Harmful? Arguably, but doubtful. Do the kids even know about it? Have they seen the photos? Were they riduculed by the camp supervisor? Not to my knowledge. How was this harmful?

Were the photos published to other pedophiles? Not to my knowledge. Where they published to the public at large? Not to my knowledge. Do you have other information? If not, then how did these kids, or kids in general, suffer any harm? How was society harmed? From the limited facts we have, there is nothing to suggest this guy was fanning the flames pedophilia around the world.

As a society we criminalize other kinds of objects that may not be harmful at the time they are possessed but the potential harm is such that the best way to prevent the harm is to prevent people from possessing the items at all–drugs, guns, dangerous weapons, etc.

Here the potential harm, as you recognize, is far from speculative–these pictures could now easily be distributed on the internet to shame and haunt these children indefinetly, given to other persons, and, these kind of so-called “innocent” pictures are frequently used to groom children for molestation. Additionally, allowing possession of this kind of picture to be decriminalized normalizes the sexual exploitation of children for perpetrators. I’m sure some people don’t take the step from using an image to gratify themselves to using an actual child. For others, though, I think it might be a very small step.

Does it violate first amendment? I don’t know–that will be for the courts to work out. But personally I have no problem with a society that criminalizes the possession of these pictures for all of the reasons I just discussed. It seems to me that the benefits of allowing individuals to possess these kinds of pictures is minimal, and the risks are substantial. And the criminal justice system is the means by which we impose societal sanctions on behavior that we want to prevent or punish.
These pictures are, admittedly, not the most harmful form of child pornography. But that is something that can be reflected in the amount of punishment.

joltbklynAugust 3, 2005

Also–while the harm in the possession of these pictures is hard to quantify (unlike physical injuries, or financial loss) there is definetly something that feels very wrong about it. Upskirting (where people took videos up women’s skirts in public places) is a similar type of issue. Call it a harm to dignity, privacy, or whatever, but I know I wouldn’t want my image used in this way, and I’m not sure why society would want to sanction it. It’s not thought policing–think anything you want, just leave my picture out of it.